2018 UT App 120

THE UTAH COURT OF APPEALS

FEDERATED CAPITAL CORPORATION,

Appellant,

v.

JAMES N. SHAW,

Appellee.

Opinion

No. 20140681-CA

Filed June 21, 2018

Third District Court, Salt Lake Department

The Honorable Denise P. Lindberg

No. 139910356

Barnard N. Madsen, Aaron P. Dodd, and Peter 

Reichman, Attorneys for Appellant

Lester A. Perry, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

CHRISTIANSEN, Judge:

¶1 Two of the three contentions presented in this case are 

identical to those we address in two factually similar cases also 

issued today. In Federated Capital Corp. v. Abraham, 2018 UT App

117, we concluded that the appellant waived any objection to the 

adequacy with which the appellee pleaded a statute-oflimitations defense. And in Federated Capital Corp. v. Deutsch, 

2018 UT App 118, we concluded that the appellant had not 

presented to the district court the issue raised on appeal, and we 

consequently deemed the issue unpreserved. In the instant case, 

the same appellant, Federated Capital Corporation (Federated),

raises the same two claims. Because the filings and factual 

background of this case are functionally identical to Abraham and 
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20140681-CA 2 2018 UT App 120

Deutsch, we reach the same conclusions on Federated’s first two 

contentions.

¶2 Federated also raises one additional claim regarding

appellee James N. Shaw’s place of performance under a credit 

card contract. However, because Federated has failed to address 

the basis for the district court’s ruling as to this claim, Federated

has failed to persuade us that the district court’s ruling on that 

claim was incorrect. We affirm and remand for the limited 

purpose of calculating Shaw’s attorney fees incurred on appeal.

BACKGROUND

¶3 Federated, a Michigan corporation, brought suit against 

Shaw, a Texas resident, alleging that he had breached a credit 

card contract that required him to make payments in 

Pennsylvania. Specifically, Federated alleged that Shaw had 

failed to make credit card payments to Federated’s predecessorin-interest totaling $25,901.76 and that he consequently owed 

Federated that amount plus approximately five years of interest 

at 34.99%. A provision of the contract specified that Utah law 

applied, that Utah courts were the proper forum, and that the 

parties consented to Utah courts’ jurisdiction (the Controlling 

Law & Jurisdiction Clause). Shaw filed an answer, asserting that 

a statute of limitations barred the suit. Shaw then moved for 

summary judgment, arguing that because the place of 

performance was Pennsylvania and that state’s four-year statute 

of limitations had already run, Utah’s borrowing statute barred 

the suit. See generally 42 Pa. Cons. Stat. § 5525(a)(8) (2002); Utah 

Code Ann. § 78B-2-103 (LexisNexis 2012).1

 

1. Utah’s borrowing statute provides,

A cause of action which arises in another 

jurisdiction, and which is not actionable in the 

(continued...)
Federated Capital Corporation v. Shaw

20140681-CA 3 2018 UT App 120

¶4 Notably, many of the pleadings, documents, and exhibits 

filed in the district court in this case were functionally identical 

to those filed in Abraham and Deutsch. Indeed, the defendants 

were all represented by the same counsel, and most of the claims 

and arguments raised by the parties were worded identically. 

The defendants’ answers all raised the same defenses. And the 

defendants’ motions for summary judgment were also 

essentially the same.

¶5 The district court held a telephonic hearing regarding 

Shaw’s summary judgment motion. The court agreed with 

Shaw’s arguments and, as relevant here, granted Shaw’s motion. 

Federated appeals, contending (1) that the district court erred by 

failing to sua sponte recognize that Shaw’s answer did not 

adequately plead a statute-of-limitations defense; (2) that the 

district court erred by applying Utah’s borrowing statute so as to 

import Pennsylvania’s statute of limitations and by not applying

Utah’s six-year statute of limitations for actions founded on 

contracts; and (3) alternatively, that the parties modified their 

original contract and “chose Utah as the place of Shaw’s 

performance” such that his “failure to pay in Utah constitutes a 

breach of contract ‘arising’ in Utah subject to Utah’s six-year 

statute of limitations” for actions founded on contracts. See 

generally Utah Code Ann. § 78B-2-309 (LexisNexis 2012). 

Federated’s briefing of the first contention is identical to the 

briefing it presented in Abraham. And its briefing of the second 

contention is virtually identical to the briefing it presented in 

Deutsch. It therefore appears that this case combines the 

 

(...continued)

other jurisdiction by reason of the lapse of time, 

may not be pursued in this state, unless the cause 

of action is held by a citizen of this state who has 

held the cause of action from the time it accrued.

Utah Code Ann. § 78B-2-103 (LexisNexis 2012).
Federated Capital Corporation v. Shaw

20140681-CA 4 2018 UT App 120

contentions raised in Abraham and Deutsch into a single case, 

with one additional issue presented regarding Shaw’s place of 

performance under the credit card contract. Neither party 

contends that the first two issues in the instant case differ in any 

significant way from the issues presented individually in 

Abraham and Deutsch.

ANALYSIS

I. Waiver

¶6 Federated first contends that, “[b]y not specifying the 

statute of limitations by section and reference number,” Shaw 

failed to properly plead his statute-of-limitations defense and 

thereby lost the right to pursue the defense. The relevant portion 

of Shaw’s answer stated, “As an affirmative defense, the 

defendant alleges that the plaintiff’s claims are barred by the 

statute of limitations.” Shaw also asserted elsewhere in his 

answer, “As an affirmative defense, the defendant alleges that 

the claims of the plaintiff are barred by the statute of limitations, 

which may be the four year limitations period of the 

Pennsylvania statute for written contracts.” Shaw then filed a 

motion for summary judgment, which included citations to the 

pertinent statutes of limitations. Federated responded to that 

motion on its merits, without objecting to the adequacy of the 

answer.

¶7 We rejected Federated’s identical claim in Abraham. There, 

the defendant’s answer stated, “As an affirmative defense, the 

defendant alleges that this action fails because of the statute of 

limitations.” Federated Capital Corp. v. Abraham, 2018 UT App 117, 

¶ 3. Like Shaw, the defendant went on to file a motion for 

summary judgment that identified the applicable statutes of 

limitations, and Federated responded to that summary judgment 

motion on its merits. Id. ¶¶ 3–4. Federated did so without 

objecting to the adequacy of the defendant’s answer. Id. ¶ 10. We 
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20140681-CA 5 2018 UT App 120

concluded that, by doing so, Federated had waived any 

objection predicated on rule 9(i) of the Utah Rules of Civil 

Procedure.2 Id. ¶ 11.

¶8 In both cases, the answer asserted a statute-of-limitations 

defense without identifying the applicable statute by section 

number. In both cases, the defendant filed a motion for summary 

judgment that did identify the applicable statute. And in both 

cases, Federated responded to the motion for summary 

judgment without objecting to the defense’s lack of specificity as 

pleaded in the answer. On appeal, Federated’s briefing of this 

issue is taken verbatim from its briefing of the same issue in 

Abraham (or vice versa).

¶9 We see no distinction between these cases, and Federated 

does not assert that a distinction exists. We therefore see no 

reason to depart from the conclusion we reached in Abraham—

that Federated waived any objection to the adequacy of the 

statute-of-limitations defense raised in the answer by replying to 

the defense on its merits during the summary judgment 

proceedings.

II. Preservation

¶10 Federated next contends that “the parties’ choice of law 

and forum is dispositive, that the case arose in Utah, and that the 

borrowing statute does not therefore apply.” In Federated Capital 

Corp. v. Deutsch, 2018 UT App 118, we concluded that Federated 

had not presented this specific legal theory to the district court 

 

2. Arguably, Shaw’s reference in his answer to “the four year 

limitations period of the Pennsylvania statute for written 

contracts” “designat[ed] the provision relied on sufficiently to 

identify it” for purposes of rule 9(i), see Utah R. Civ. P. 9(i), 

thereby foreclosing Federated’s argument that Shaw’s answer 

was defective.
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20140681-CA 6 2018 UT App 120

and had therefore failed to preserve it for appeal. See id. ¶¶ 9–16. 

We reach the same conclusion here.

¶11 Federated’s legal theory on appeal is that, because the 

Controlling Law & Jurisdiction Clause specified that the contract 

would be “governed solely by and interpreted entirely in 

accordance with the laws of the State of Utah,” the cause of 

action for Shaw’s alleged breach of contract arose in Utah. And if 

the cause of action arose in Utah, the borrowing statute would be 

inapplicable and Utah’s six-year statute of limitations would 

apply.

¶12 In Deutsch, we examined the record and concluded that 

Federated had never presented this legal theory to the district 

court. See id. ¶ 16. Although the case was heard before a different 

judge and the filings contain some wording differences, the 

record here does not differ in any significant way. In both cases, 

the defendants moved for summary judgment on Pennsylvania 

statute-of-limitations grounds, and Federated opposed the 

summary judgment by asserting that Utah’s statute of 

limitations applied because the parties had agreed to be 

governed by Utah law. And, on appeal, Federated’s briefing of 

this issue is virtually identical to its briefing in Deutsch (or vice 

versa). In short, no relevant arguments were made in this case 

that were not made in Deutsch.

¶13 Because we see no distinction between the instant case 

and Deutsch, and because Federated does not assert that one 

exists, we reach the same conclusion—that the legal theory now 

argued by Federated was not presented to the district court and 

thus is not preserved for appeal. See id. ¶¶ 16, 20.

III. Place of Performance

¶14 As an alternative argument to its second contention, 

Federated asserts that “after their original contract the parties 
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20140681-CA 7 2018 UT App 120

chose Utah as the place of Shaw’s performance” and that Shaw’s 

“failure to pay constitutes a breach arising in Utah under Utah’s 

six-year statute of limitations.” In his motion for summary 

judgment, Shaw asserted that Pennsylvania’s four-year statute of 

limitations applied because his credit card contract with 

Federated’s predecessor-in-interest “states that the defendant is 

to make monthly payment on the account at the address 

indicated on [his] monthly statements,” and Federated’s 

predecessor-in-interest “selected Philadelphia, Pennsylvania as 

the place that payments were to be sent on each and every 

monthly account statement.” The district court agreed, 

concluding that the contract provided that Shaw’s place of 

performance was Pennsylvania, that the cause of action arose in 

Pennsylvania in March 2007, and that Pennsylvania’s four-year 

statute of limitations applied. Because neither Federated nor its 

predecessor-in-interest had filed suit within four years of Shaw’s 

March 2007 default, the district court ruled that Federated’s suit 

was barred by the statute of limitations.

¶15 On appeal, Federated asserts that the parties amended the 

language of the credit card contract in 2007 to specify the 

procedures for electronic payments. According to Federated, the 

amended contract “provided procedures for electronic 

payments,” and Shaw agreed to those procedures when he 

continued to use his credit card and made electronic payments. 

Observing that the four payments Shaw made between March 

2007 and January 2008 were “made electronically” and that his 

billing statements included the notation “ELECTRONIC PYMT 

THANK YOU SLC UT,” Federated asserts that Shaw’s payments 

were received in Salt Lake City, Utah, and that Shaw’s billing 

statements demonstrate that “the parties modified the manner 

and place of Shaw’s payments” from Pennsylvania to Utah. 

Thus, Federated contends, the district court “err[ed] in finding 

that this case ‘arose’ in Pennsylvania and that the borrowing 

statute and Pennsylvania’s four-year statute of limitations 

appl[ied].”
Federated Capital Corporation v. Shaw

20140681-CA 8 2018 UT App 120

¶16 “Summary judgment is appropriate when the evidence 

‘shows that there is no genuine dispute as to any material fact 

and the moving party is entitled to judgment as a matter of 

law.’” Federated Capital Corp. v. Libby, 2016 UT 41, ¶ 7, 384 P.3d 

221 (quoting Utah R. Civ. P. 56(a)). We review the grant of 

summary judgment for correctness. Id.

¶17 Section 6 of the amended credit card contract stated, in 

relevant part:

You agree to make all payments in US dollars 

payable through a US Financial Institution, either 

by check or money order payable to us at the 

location and in the manner specified on your 

periodic billing statement or in any other manner 

(such as by electronic fund transfer or wire 

transfer) that we agree to and provide procedures 

for.

The penultimate paragraph of section 6 stated:

Account payments are to be mailed to the address 

for payments shown on your periodic billing 

statement. Payment must be received by us at that 

address on or before the specified time on the 

Payment Due Date stated on your periodic billing 

statement, and must conform to any specific 

requirements for making payment which appear 

with or in your billing statement. Payments tendered 

to and accepted by us or our agent at a location other 

than the address stated on your periodic billing 

statement are not effective until received by us at the 

address specified.

(Emphasis added.)
Federated Capital Corporation v. Shaw

20140681-CA 9 2018 UT App 120

¶18 Shaw’s periodic billing statements provided that payment 

was to be made to:

ADVANTA BANK CORP

PO BOX 8088

PHILADELPHIA, PA 19101-8088

As noted by Federated, on four of the billing statements the 

notation “ELECTRONIC PYMT THANK YOU SLC UT” 

appeared in the “Activity Since Last Statement” section.

¶19 The district court observed that Federated’s predecessorin-interest was a Utah resident and that Federated was 

incorporated in Michigan. Although Federated asserted that it 

(Federated) had a Salt Lake City office, it provided no evidence 

to support that claim. And Federated did not assert that its 

predecessor-in-interest’s rights of residency had passed to 

Federated.3 The court also noted that the credit card contract

“provide[d] that cardmembers should make all payments to 

[Federated’s predecessor-in-interest] in Pennsylvania or in 

another manner provided for by [Federated’s predecessor-ininterest]. However, any such payments would only be 

considered ‘effective’ upon [Federated’s predecessor-ininterest’s] receipt of the payment at its Pennsylvania address.” 

The court determined that, “even if a payment could be tendered 

at another location, those payments were only deemed effective 

when [Federated’s predecessor-in-interest] received the payment 

at the Pennsylvania address specified in the agreement. In light of 

 

3. Utah Code section 78B-2-103 provides an exception to Utah’s 

borrowing statute when “the cause of action is held by a citizen 

of this state who has held the cause of action from the time it 

accrued.” Utah Code Ann. § 78B-2-103 (LexisNexis 2012); see 

generally Federated Capital Corp. v. Deutsch, 2018 UT App 118, 

¶ 5 n.2. The district court appears to have recognized that 

Federated waived any argument regarding this exception.
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20140681-CA 10 2018 UT App 120

that clear provision, it is evident that Shaw’s ultimate obligation 

was required to be performed in Pennsylvania.” Thus, according 

to the district court, when Shaw failed to make the required 

payments, “the default occurred and [Federated’s predecessorin-interest’s] cause of action arose in Pennsylvania in March of 

2007.” Observing that Pennsylvania has a four-year statute of 

limitations for breach of contract and that neither Federated nor 

its predecessor-in-interest “brought an action under the 

Agreement within that timeframe,” the court granted Shaw’s 

motion for summary judgment.

¶20 On appeal, Federated does not meaningfully engage with 

the district court’s reasoning. Indeed, Federated ignores the 

section of the contract providing that, “[p]ayments tendered to 

and accepted by us or our agent at a location other than the 

address stated on your periodic billing statement are not 

effective until received by us at the address specified.” The 

district court’s reasoning relied considerably on this provision of 

the contract; however, Federated does not critique the court’s 

interpretation or application of this language. Rather, Federated 

simply recites the facts and contract provisions in its favor and 

asserts that the district court erred. Federated’s conclusory 

analysis falls short of demonstrating any error on the part of the 

district court. See Hi-Country Estates Homeowners Ass’n v. Jesse 

Rodney Dansie Living Trust, 2015 UT App 218, ¶ 5, 359 P.3d 655 

(“[A]n appellant must address the basis for the district court’s 

ruling.”); Golden Meadows Props., LC v. Strand, 2010 UT App 257, 

¶ 17, 241 P.3d 375 (explaining that an appellant cannot 

demonstrate that a district court erred if it “fails to attack the 

district court’s reasons” for the decision it made). Because 

Federated has failed to address the district court’s reasoning, it 

has failed to carry its burden of persuasion on appeal. See HiCountry Estates, 2015 UT App 218, ¶ 5. Accordingly, we conclude 

that Federated has not demonstrated that the district court 

erroneously granted Shaw’s motion for summary judgment.
Federated Capital Corporation v. Shaw

20140681-CA 11 2018 UT App 120

IV. Attorney Fees Incurred on Appeal

¶21 Shaw contends that he should be awarded attorney fees 

and costs incurred on appeal. “Under Utah’s reciprocal attorney 

fee statute, courts may award attorney fees to the prevailing 

party of a contract dispute so long as the contract provided for 

the award of attorney fees to at least one of the parties[.]”4

Federated Capital Corp. v. Haner, 2015 UT App 132, ¶ 11, 351 P.3d 

816; see also Utah Code Ann. § 78B-5-826 (LexisNexis 2012). Here, 

the contract provided for an award of attorney fees to Federated, 

and the district court awarded attorney fees to Shaw based on 

the reciprocal attorney fee statute. “A party entitled by contract 

or statute to attorney fees below and that prevails on appeal is 

entitled to fees reasonably incurred on appeal.” Haner, 2015 UT 

App 132, ¶ 19 (quotation simplified). Shaw has prevailed on 

appeal, and we therefore award Shaw his reasonable attorney 

fees incurred in connection with this appeal in an amount to be 

determined by the district court on remand.

CONCLUSION

¶22 Because the first two issues in this case are identical to

those raised in Abraham and Deutsch, because the underlying 

records do not differ in any significant way, and because 

Federated does not distinguish this case from those, we conclude 

 

4. Utah’s reciprocal attorney fee statute provides,

A court may award costs and attorney fees to 

either party that prevails in a civil action based 

upon any promissory note, written contract, or 

other writing executed after April 28, 1986, when 

the provisions of the promissory note, written 

contract, or other writing allow at least one party to 

recover attorney fees.

Utah Code Ann. § 78B-5-826 (LexisNexis 2012).
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20140681-CA 12 2018 UT App 120

that our holdings in those cases control. Federated waived its 

objection to the lack of specificity in Shaw’s answer and did not 

preserve a claim that the causes of action actually arose in Utah.5

In addition, because Federated fails to acknowledge the basis for 

the district court’s determination that Shaw’s obligation was to 

be performed in Pennsylvania, Federated has failed to persuade 

us that the district court erroneously granted Shaw’s motion for 

summary judgment.

¶23 Affirmed.

 

5. In light of the similarities between the cases, we also adopt the 

analysis and reasoning of our other conclusions stated in 

Abraham and Deutsch.